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2020 DIGILAW 1938 (KAR)

Beerappa v. State Of Karnataka

2020-09-30

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by the petitioners-accused Nos.1 and 2 under Section 439 of Cr.P.C. seeking bail in Crime No.75/2020 of Yamakanmardi Police Station registered for the offence punishable under Sections 302, 341 r/w Section 34 of IPC. 2. The case of the prosecution is that one Sri. Bhimarao Pundalik Hegade has filed complaint stating that he is residing in Kakati of Belagavi along with his wife Shridevi and children and mother etc. That the maternal house of informant s wife is Narasingapur village of Hukkeri taluka. In the maternal house of his wife, her father Vittahal Bheerappa Kamati, mother Kashavva and brother deceased Bheerappa Vitthal Kamati aged abut 27 years and his wife Sarojini and son Sanchit were living together. Bheerappa was doing driver work. On 01.04.2020 at about 3.00 a.m. in the early morning deceased Bheerappa Kamati brother of informant s wife came to his house, upon asking deceased Bheerappa Kamati stated that his relative by name Vitthal Siddappa Badayi has objected last night for having illicit relationship with his wife Anjana, for that being afraid of him he came there. Thereafter, in the evening at about 6.00 p.m. informant s father-in-law Vitthal Bheerappa Kamati i.e. father of Bheerappa through phone informed to bring his son deceased Bheerappa to the village as there was meeting with the elders of the village to solve the dispute. The informant at about 7.45 p.m. took the said deceased Bheerappa on his motorcycle to Narasingapur village through Kakati and stood near the Laxmi temple of Narasingapur near the side of the NH-4. At that time Bheerappa Dundappa Badayi-accused No.1 and Satyappa Siddappa Badayi-accused no.2 were standing near the temple near Bheerappa s house, the said Bheerappa-accused No.1 Badayi was holding the sickle, and stated that the Bheeraya has come and upon seeing the same his brother-in-law started to run by crossing the NH-4 road, both of them chased and informant also followed them, by the east side of the NH-4 in the grave yard of the Narasingapur, the said Satyappa-accused No.2 is holding him and the informant being afraid was standing far away and Bheerappa Badayi-accused No.1 by use of sickle caused 3 to 4 injuries on his neck and left the deceased Bheerappa there itself and went along with the sickle. Thereafter, informant went near his brother-in-law Bheerappa and saw bleeding injuries on neck and head and was dead and the time is about 8.15 p.m. subsequently, informant went to his father s house and informed the same fact and thereafter they also seen the same. The complaint came to be registered in Crime No.75/2020 of Yamakanmardi Police Station. Petitioners were arrested on 02.04.2020. The petitioners approached the X Addl. District and Sessions Court, Belagavi in Crl.Misc.No.1040/2020 and the same came to be rejected by order dated 31.07.2020. Therefore, petitioners are before this Court seeking bail. 3. Heard the learned counsel for the petitionersaccused Nos.1 and 2 and learned HCGP for respondent- State. 4. It is the submission of the learned counsel for the petitioners-accused Nos.1 and 2 that as per the prosecution case, scene of offence is grave yard and there are two sketches of scene of offence one is prepared by PWD engineer and another is prepared by Investigating Officer. In both of them, no electrical poles are shown and no electrical light is there. It is his further submission that weapon has been recovered at the at the instance of accused No.1 from his land and blood stained clothe has been recovered at the instance of accused Nos.1 and 2. It is his further submission that there was no intention to commit the murder of deceased. It is his further submission that except complainant, there are no eye witnesses to the incident. As there was no light in the spot, complainant cannot be considered as eye witness. It is further submission that Investigating Officer has recorded the voluntary statement of accused Nos.1 and 2 and they have stated regarding extra judicial confession made by before Siddalinga Kempanna Bennadi and Investigating Officer has not recorded his statement. It is his further submission that charge sheet has been filed and petitioners are not required for custodial interrogation. With this he prays to allow the petition. 5. Per contra, the learned HCGP submitted that CW.1 is the eye witness. He has stated overt acts of accused Nos.1 and 2. It is her further submission that CWs.10 to 14 are the elders who have advised the deceased to stop illicit relationship. It is her further submission that CW.16 has stated regarding illicit relationship of deceased with the wife of Vittal who is brother of accused No.2. He has stated overt acts of accused Nos.1 and 2. It is her further submission that CWs.10 to 14 are the elders who have advised the deceased to stop illicit relationship. It is her further submission that CW.16 has stated regarding illicit relationship of deceased with the wife of Vittal who is brother of accused No.2. It is her further submission that CW.17 stated regarding accused chasing the deceased. It is her further submission that weapon used by accused No.1 to assault the deceased has been seized at his instance under panchanama. It is her further submission that the doctor who has conducted postmortem has opined that death caused by injuries to vagus nerve by sharp object. It is her further submission that the doctor who has conducted postmortem examination has examined the weapon seized and has opined that injuries mentioned in the postmortem can be caused with the said weapon. It is her further submission that there is prima facie case against petitioners for the offences alleged against them. It is her further submission that if the petitioners-accused Nos.1 and 2 are released on bail, they will tamper the prosecution witnesses and flee from justice. With this she prays to reject the bail petition. 6. Having regard to the submission made by the learned counsel for the petitioners-accused Nos.1 and 2 and the learned HCGP, this Court has gone through the charge sheet records. 7. The scene of offence is situated in grave yard. Investigating Officer has drawn scene of offence panchanama and taken photograph of it and also prepared a sketch of scene of offence. PWD Engineer has also prepared a sketch of scene of offence. In the said photograph no electrical poles are seen. In the said two sketches also no electrical poles are shown. The incident has taken place at about 7.45 p.m. Therefore, the complainant witnessing the incident is doubtful as there was no light on the spot. Except CW.1-complainant there was no eye witness to the incident. 8. In the said photograph no electrical poles are seen. In the said two sketches also no electrical poles are shown. The incident has taken place at about 7.45 p.m. Therefore, the complainant witnessing the incident is doubtful as there was no light on the spot. Except CW.1-complainant there was no eye witness to the incident. 8. It is well settled that matters to be considered in an application for bail are: (i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. 9. In a decision in the case of DATARAM SINGH Vs. STATE OF UTTARA PRADESH AND ANOTHER, (2018) 3 SCC 22 , the Hon ble Apex Court held as under: A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 10. In the present case the investigation is completed and charge sheet is filed. No grounds have been made out by the prosecution to show that custodial interrogation of the petitioners-accused Nos.1 and 2 is necessary. The petitioners-accused Nos.1 and 2 are residing in the address shown in cause title and the same is not disputed. There are no criminal antecedents of the petitioneraccused Nos.1 and 2. The main objection of the prosecution is that in the event of grant of bail, the accused Nos.1 and 2 are likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing some stringent conditions. 11. In the said facts and circumstances of the case, this Court is of the considered view that there are valid grounds for grant bail subject to conditions. Hence, I pass the following. ORDER The petition filed under Section 439 of Cr.P.C. is allowed. The petitioners/accused Nos.1 and 2 shall be released on bail in Crime No.75/2020 of Yamakanmardi Police Station, subject to the following conditions. i) The petitioners shall execute a personal bond for a sum of Rs.1,00,000/- each (one lakh rupees only) with one surety for the like sum to the satisfaction of the jurisdictional Court. In view of the Covid-19 petitioner is permitted to furnish surety within two months. If the circumstance arises the jurisdictional Court can extend the time for furnishing surety. ii) The petitioners shall not indulge in tampering the prosecution witnesses in any manner. iii) The petitioners shall appear before the Court and co-operate in speedy disposal of the case.